Seshagiri Aiyar, J. — The facts of the case are as follows:—The last male holder of the properties in suit died between 1841 and 1845. His widow Venkamma and his mother Gowramma sold the properties in that year. The sale-deed has not been produced, but it is clear from Exhibit K that it was an absolute conveyance: Venkamma died in 1854. Gowramma who succeeded to the properties sold them to one Vasappayya in 1857: The purchaser sued the vendee under the two widows in the same year alleging that the sale set up by the latter was fictitious and that he was entitled to possession under Gowramma's conveyance. Gowramma was the 4th defendant in that suit. It was held that the sale by the two widows was genuine and that as Gowramma herself was barred by limitation, as the suit was more than twelve years after the first sale, the purchaser was also barred by limitation. It is clear that Gowramma never got possession. She died in 1908 and the present suit was brought within twelve years of her death by the reversioners to recover possession.
The Courts below have held that the suit was barred by limitation and that the sale must be presumed to have been for legal necessity. I am unable to uphold the latter conclusion: The onus is undoubtedly on the purchaser to establish necessity. Lapse of time may enable the Court to consider the evidence let in by him favour ably and to pay more attention to the recitals in the conveyance than would otherwise have been done. But these considerations can have no weight when there is no substantive evidence on the question of necessity. See Ravaneshwar Prasad Singh v. Chandi Prasad Singh. I therefore hold that necessity has not been established.
On the question of limitation, I agree with the conclusion of the Courts below, though not with the reasons assigned for it. Under the Limitation Act of 1859, if the widow is barred by limitation, the reversioners would be equally barred. This is well established. See Nobin Chunder Chuckerbutty v. Issur Chunder Chuckerbutty and Sambasiva v. Ragava. The decision on review (Ragavachariar v. Sambasiva does not affect this question. This principle does not apply to alienations by the widow. Where a widow conveys property, no question of adverse possession as against her arises, unless the conveyance is inoperative to pass property further, her conveyance would vest in the purchaser all that she is capable of granting, namely her life interest: and it is not incumbent upon the reversioner either to seek to displace the alienee or to obtain a declaration that the alienation will not bind his interests. Although under the Specific Relief Act, (at least after the Limitation Act of 1871) he can sue for a declaration if he chooses he is not bound to adopt that course. The result is that he is entitled to hold his hand until the widow dies. His right under the Hindu Law accrues only on her death and therefore he is not affected by the alienation of the widow. Pursut Koer v. Palut Roy and Sambasiva v. Ragava are authorities for the position that although under the Limitation Act of 1859 what bars the widow would bar the reversioner, her alienation would not give a cause of action, so as to bar him when succession opens. The Courts below are therefore wrong in holding that the suit was barred on this ground.
The real ground put forward by the learned vakil for the respondent was this. The conveyance of 1845 by the two widows was not capable of conveying Gowramma's interest, as she had only a contingent interest: Consequently it was open to her to have sued to recover possession after 1854: and as she did not sue for possession and was consequently barred the reversioners also were barred. I think this contention is sound. The decisions in Sham Sundar Lal v. Achhan Kunwar and in Hari Nath Chatterjee v. Mothurmohun Goswami support the contention. The learned vakil for the appellant suggested that the conveyance of 1845 by both the widows should be looked at as if Gowramma consented to the alienation by Venkamma. I am unable to accede to this suggestion. In the case of a consent by the next reversioner, he or she gives a guarantee that the alienation by the person in possession is justifiable. There is no conveyance of the consenting party's interest by such an act; but a presumption arises that the act of the party in possession having been done in the interests of the estate, it is binding upon all persons entitled to it in succession. That is the principle that is deducible from Ramadhin v. Mathura Singh, Venkatasubbiar v. Muthusami and Jamna Kunwar v. Ramhit Singh. But where a person joins in a transaction to which his adhesion can give no validity, it would not be right to argue that he consented to the alienation by the real owner. As pointed out by the Judicial committee in Sham Sundar Lal v. Achhan Kunwar. such a conveyance can only transfer the interest of the party in possession and no more. In this view, notwithstanding her joining in the sale of 1845, it was open to Gowramma to have sued to recover possession. She did not do so. She was therefore barred by limitation; and what barred her barred the reversioners, the plaintiffs. The decision in Runchordas v. Parvatibai does not affect this present position, as in that case, the bar was not completed under the Act of 1859.
The learned vakil for the respondent also supported the judgment On the ground of res judicata. As this is a pure question of law, not requiring any fresh facts, the contention may be dealt with by us in Second Appeal. As I said before, the purchaser from Gowramma sued in 1857 impeaching the sale of 1845 and Gowramma was the 4th defendant in that suit, the 1st defendant being the vendee of 1845. It was held in that suit that as Gowramma was barred by limitation from claiming to recover, her vendee was equally barred. It is not necessary to canvass the correctness of this decision. It was binding on Gowramma and as the present litigation relates to the same object matter it is binding on the reversioners. My learned brother and Mr. Justice Sankaran Nair seem to have come to a similar conclusion in Venkoba Row v. Nataraja Chettiar. There can be no question that there was active controversy between the 1st and the 4th defendants in that previous litigation. Therefore there was the bar of res judicata as against the 4th defendant.
I have mentioned this second ground also, although I am not as strong upon this point as I am on the question of limitation.
For all these reasons, I think the decisions of the Courts below is right and that this Second Appeal should be dismissed with costs.
Spencer, J.—I agree. I think that the plaintiff's suit was rightly dismissed on the point of limitation, and that it must also have failed on the plea of res judicata if that defence had been raised in the Courts below.
Under the Limitation Act XIV of 1859, Sect. 1, cl. 12, the reversioners had twelve years to set aside the alienation in favour of Padma Konde from 1845 or 1847 whichever was the exact date of the sale, that being the time when the cause of action arose. This period could not be enlarged by the fact of Gowramma having joined her daughter-in-law in the execution of the sale-deed as Gowramma subsequently repudiated the transaction in the litigation of 1857 (Vide Exhibit K). It must be taken that when she was made a party to that suit she represented the whole estate (See Hari Nath Chatterjee v. Mothurmohun Goswami and Venkoba Row v. Nataraja Chettiar) and that the possession of Padma Konde and his representatives was adverse to the title of any person claiming in succession to her from that date at least. The right of the reversioner to recover possession thus became barred in 1859 or at least in 1869, before the Limitation Act, 1871, which allowed twelve years from the death of the widow, came into force in July 1871. Further in O. S. No. 461 of 1857, to which Gowramma was a party, it was held on the 18th February 1859 that Padma Konde had perfected this title by more than twelve years adverse possession, a finding which would operate as res judicata against any person subsequently claiming in the interest of the estate to have the sale avoided.
In this view it becomes unnecessary to consider whether the District Judge had any legal evidence to support his finding that the sale to Padma Konde was for legal necessity.
The Second Appeal must be dismissed with costs.
S. S.Appeal dismissed.